Robey v. State, 49A04-1107-CR-433
| Decision Date | 16 March 2012 |
| Docket Number | No. 49A04-1107-CR-433,49A04-1107-CR-433 |
| Parties | RICKEY ROBEY, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE:
RICKEY ROBEY
Pendleton, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Rickey Robey, pro se, appeals the trial court's denial of his motion to correct erroneous sentence. Because Robey alleges sentencing errors that require consideration of matters beyond the face of the sentencing judgment, a motion to correct erroneous sentence was not the appropriate vehicle for him to use. Accordingly, we conclude that the trial court properly denied Robey's motion.
In 1987, Robey and his codefendant, Michael Lane, were convicted of Class A felony rape, Class A felony criminal deviate conduct, and three counts of Class A felony kidnapping in Marion Superior Court. The trial court sentenced Robey to an aggregate term of 100 years. Robey and Lane appealed to the Indiana Supreme Court. The Supreme Court affirmed Robey's convictions, but it remanded his case to the trial court "for the entry of individual, specific findings supporting the imposition of enhanced sentences or, in the alternative, for the reduction of the sentences to the standard sentences provided for by statute." Robey v. State, 555 N.E.2d 145, 152 (Ind. 1990).
On remand in 1992, Judge Pro Tempore William Young found aggravating circumstances and sentenced Robey to an aggregate term of 100 years. Appellant's App. p. 7, 50-51.
Robey appealed the trial court's resentencing. This Court, however, dismissed the appeal because Robey was not sentenced by a duly appointed or qualified judge. We therefore remanded for another resentencing. Robey v. State, 49A02-9210-CR-502 (Ind. Ct. App. Feb. 15, 1993).
In 2000, Judge Pro Tempore William T. Robinette resentenced Robey to an aggregate term of eighty years. Appellant's App. p. 19.
Robey again appealed the trial court's resentencing, arguing that his sentence was manifestly unreasonable. Robey v. State, No. 49A02-0006-CR-384 (Ind. Ct. App. Nov. 9, 2000). This Court found Robey's eighty-year sentence to be "reasonable" and therefore affirmed the trial court. Slip op. at 5-6.
In 2001, Robey filed a petition for post-conviction relief, which was amended by counsel in 2003.1 He argued that his second appellate counsel was ineffective for failing to raise a double-jeopardy violation. After a hearing, the post-conviction court denied Robey relief in 2004. Robey appealed the denial of post-conviction relief, and this Court affirmed. Robey v. State, 49A05-0406-PC-342 (Ind. Ct. App. Mar. 17, 2005), trans. denied.
In 2011, Robey, pro se, filed a motion to correct erroneous sentence. He argued that Judge Young's 1992 sentence is "erroneous on its face because his thirty (30) year sentences were increased on the 'specific finding' that a jury in fact found Robey guilty of 'Criminal Deviate Conduct' beyond a reasonable doubt." Appellant's App. p. 34. He also alleged errors in Judge Robinette's 2000 sentence. Id. (). The trial court denied Robey's motion to correct erroneous sentence.
Robey now appeals.
Robey contends that the trial court erred in denying his motion to correct erroneous sentence.2 The State responds that because the alleged sentencing errors are not clear from the face of the sentencing judgment, a motion to correct erroneous sentence is the wrong vehicle in which to bring this claim.
An inmate who believes he has been erroneously sentenced may file a motion to correct the sentence pursuant to Indiana Code section 35-38-1-15:
If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.
Ind. Code § 35-38-1-15; see also Neff v. State, 888 N.E.2d 1249, 1251 (Ind. 2008). The purpose of this statute "is to provide prompt, direct access to an uncomplicated legal process for correcting the occasional erroneous or illegal sentence." Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (quotation omitted). Accordingly, a motion to correct sentence may only be filed to address a sentence that is "erroneous on its face." Neff, 888 N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 786). Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence. Robinson, 805 N.E.2d at 787. Sentencing errors that are not facially apparent must be addressed via direct appeal or post-conviction relief. Neff, 888 N.E.2dat 1251. In addition, a motion to correct erroneous sentence may only arise out of information contained on the formal judgment of conviction, and not from the abstract of judgment. Id. However, if the particular county does not issue judgments of conviction (at the time of the opinion in Neff only Marion County qualified), then the trial court's abstract of judgment will serve as an appropriate substitute for purposes of making the claim. Id.
Although Robey's argument is difficult to decipher,3 he appears to challenge the aggravators used to enhance his sentences above the thirty-year presumptive term and allege a Blakely violation. Resolution of these issues, however, requires us to go beyond the face of the abstract of judgment.4 See Robinson, 805 N.E.2d at 786-87 (); Fulkrod v. State, 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006) (...
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